https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8789

Mumbo v Republic (Criminal Revision E052 of 2025) [2026] KEHC 8789 (KLR) (22 June 2026) (Ruling) Neutral citation: [2026] KEHC 8789 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Revision E052 of 2025 PJO Otieno, J June 22, 2026 Between Elvis Ochieng Mumbo Applicant and Republic Respondent (Arising from judgement and sentence of High Court at Homa Bay in HCCRC Case No. 9 of 2012 and Court of Appeal at Kisumu, Criminal Appeal No. 150 of 2015) Ruling 1.The applicant was, together with others not before the court in this application, charged with murder contrary to section 203 as read with section 204, of the Penal Code, in Homa Bay HCCRC No. 9 of 2012. Upon full trial, the Appellant was convicted of the charge of murder and subsequently sentences to serve a death penalty. 2.Dissatisfied with both the trial court’s conviction and sentence, the Applicant filed an appeal, in Kisumu CACRA No. 150 of 2015. The appeal was at the end dismissed, on the conviction, but the death sentence was substituted with imprisonment for a period of 20 years. 3.From the records, the Applicant was arrested on the 22nd of May 2012 and was remanded in custody for the entire trial period. It is for that fact that he now pleads that the period he spent in custody be taken into account because the trial court failed to take same into account in sentencing. It is his case that the court in exercise of the duty imposed by section 333(2) of the Criminal Procedure Code ought to revisit his sentence, by taking the period that he spent in custody into account. The Respondents have not opposed the Application. Instead, in their submissions, they concede that the time taken by the Applicant in remand custody was not taken into account. 4.The trial court sentenced the applicant to death, and it was the Court of Appeal that reduced that sentence to 20 years imprisonment. The Applicant does not ask this court to review the Court of appeal’s sentence but seeks that the period for which his right to be free be limited by operation of the law be so limited in accordance with the law and not contrary to it. The court views the application to simply ask that his right to the least of prescribed punishment be upheld and enforced by the court taking into account the duration he spent in remand custody, now computed to have been duration of two (2) years and eleven (11). 5.The provisions of section 333(2) of the Criminal Procedure Code, was the point of discussion by the court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic, [2018] eKLR where the Court was succinct that the law obligates every court passing a sentence to take into account the period served so as to proportionately reduce the term imposed by the court. The Court of Appeal held that:“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody.“Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person….” 6.The same court in Bethwel Wilson Kibor vs Republic [2009] eKLR expressed itself as follows:“By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.” 7.The two decisions and others have influenced the entire sentencing landscape when same included in the Judiciary Sentencing Policy Guidelines provides as follows:“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 8.By virtue of Section 333(2) of the Criminal Procedure Code, the duration of remand custody ought to have been considered during sentencing. However, the records show all the previous courts have remained silent on the issue of the duration the applicant spent in remand. 9.Consequently, the court orders that the applicant shall serve the twenty (20) years imprisonment term computed from the date of the Applicant’s arrest being 22nd of May 2012. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF JUNE, 2026.PATRICK J O OTIENOJUDGE